The Monica Stugelmeyer Case,The United States Senator, and
The Equal Employment Opportunity Commission

by Marc Maurer

Marc Maurer

Monica Stugelmeyer has been a member of the National Federation of the Blind for more than fifteen years. She has held a number of jobs and is presently employed in the mailroom at the Spokesman Review newspaper. She might not have known about her rights as a blind person, but she joined the National Federation of the Blind, and she has learned that she should be treated with fairness. When her employer denied her a promotion because she is blind, she came to the Federation to find out how to protect herself. A complaint has been filed with the Equal Employment Opportunity Commission (EEOC). The agency investigated and found good cause to believe that discrimination had occurred. But the Spokesman Review would not even consider the proposition that treating a blind employee differently from any other is a violation of the law.

Because the newspaper refused to discuss the matter, the case has been filed in federal court. I asked Scott LaBarre to represent Monica Stugelmeyer. Apparently our advocacy on her behalf made a real difference. Witherspoon, Kelley, Davenport, and Toole, the law firm representing the Spokesman Review, decided to try to avoid the judicial system and to bully the EEOC. It wrote a letter to Senator Slade Gorton complaining that the Federation had been behind the case, and it said that the EEOC had succumbed to undue pressure. However, the EEOC is not to be easily cowed. It responded to Senator Gorton with the facts and said it expected to win the case in federal court. The Spokesman Review asked Senator Gorton to peddle a little Washington influence, but the ploy backfired. Here is the relevant correspondence. First is the letter from the newspaper's law firm to Senator Gorton.

 

Spokane, Washington
January 18, 1999

Catherine O'Connell
Office of U.S. Senator Slade Gorton
Spokane, Washington

RE: Cowles Publishing/EEOC


Dear Ms. O'Connell:

This letter summarizes the situation I described to you on the phone last week involving Cowles Publishing and the suit brought against it by the EEOC for disability discrimination.

In April, 1996, the Spokesman-Review/Cowles Publishing hired Monica Stugelmeyer to work as a trucker/inserter in the company's mailroom. The mailroom packages advertising inserts in daily and weekend papers. Ms. Stugelmeyer is legally blind, but she did not notify Cowles of that fact when she was hired, nor did she ask for any accommodation to her vision impairment.

After several weeks and though she was barely adequate at performing some of her duties, Ms. Stugelmeyer was, as all mailroom employees were then, given the opportunity to work on the inserting equipment. There was an hourly pay differential of $1 per hour more for working on the inserter, which all the employees wanted. After several hours other employees came to the mailroom supervisor complaining that Ms. Stugelmeyer could not keep up with the other employees and that it was unsafe for other employees to be working with her because she could not see the equipment controls or mechanical parts well enough to act quickly if necessary. She was taken off the inserter and assigned to other tasks in the mailroom. She continued to work as many shifts as she had before working on the inserting equipment, and the company tried to find extra shifts for her to make up for the pay differential.

Ms. Stugelmeyer complained to management and to the Mailers' Union that in not working on the inserter she was being discriminated against because she is blind. The union declined to pursue a grievance filed by Ms. Stugelmeyer. The management, after consultation with the company's insurer, [the] Department of Labor and Industries, and the inserting equipment manufacturer about the unsafe nature of the equipment, reaffirmed the initial decision to remove Ms. Stugelmeyer from inserting duties. The union concurred.

Ms. Stugelmeyer enlisted the assistance of an attorney for the Washington Federation [of] the Blind, the state branch of the National Federation [of] the Blind. With the attorney's input, Ms. Stugelmeyer filed a complaint with the EEOC, which concluded, in large part, we believe based on the Federation for the Blind's pressure, that Cowles had discriminated against Ms. Stugelmeyer in not putting her on the inserting equipment, despite the input from a number of sources about safety concerns. The attorney for the Federation for the Blind refused Cowles' invitation to come and see the mailroom and the inserting equipment.

Cowles attempted to conciliate with the EEOC, offering to permit Ms. Stugelmeyer to train and be evaluated on new inserting equipment that was installed in late 1997. The new equipment has many safety features lacking on the old equipment, and management believed it was possible to give Ms. Stugelmeyer an opportunity to train on it without unduly threatening her or her fellow employees.

The EEOC initially agreed to such training but then, without discussing the matter with Cowles again, unilaterally decided, midway through the agreed-upon training period, that Ms. Stugelmeyer was completely qualified to work on the equipment and therefore entitled to a full-time job. The EEOC also demanded for Ms. Stugelmeyer back pay from 1996 and punitive damages for Cowles' allegedly "egregious" conduct in not permitting Ms. Stugelmeyer to insert. When Cowles objected to the EEOC's bad faith in reneging on the training and evaluation arrangement, the EEOC brought suit against the company. The National Federation for the Blind now seeks to represent Ms. Stugelmeyer and intervene on her behalf in the lawsuit, though the Federation has, thus far, refused to explain to Cowles why the EEOC is not adequately representing Ms. Stugelmeyer's interests. Despite the unwillingness of the EEOC to participate in a final determination as to Ms. Stugelmeyer's qualifications, Cowles has determined she is qualified to work part-time as an inserter, although she is not sufficiently skilled and proficient to work in one of fifteen full-time positions, all of which are currently filled. She is currently working one or two shifts per week as a part-time inserter. She is also assigned shifts as a trucker.

Far from having discriminated or acted in bad faith, Cowles has an exemplary reputation for efforts to employ a diverse workforce, including disabled people. Further, in 1991 the Spokesman Review/Spokane Chronicle was presented with the Goodwill Industries of the Inland Northwest Employer of the Year award for employment of people with disabilities. Aside from acting in bad faith in its negotiations with the company, the EEOC appears to have succumbed to political pressure from an advocacy organization that has an axe to grind with employers. This should not be the motivation for a government agency supported by the taxpayers and supposedly acting for the good of the public.

We appreciate your interest in this situation and your efforts to assist. Please do not hesitate to call if you have questions. I have included a more detailed summary of the facts in the case for further background.

Sincerely yours,
Duane M. Swinton
Witherspoon, Kelley, Davenport & Toole


There you have the letter written by the law firm to Senator Gorton. Mr. Gorton responded by making an inquiry to the EEOC. Here is his letter:

Washington, D.C.

January 28, 1999

Equal Employment Opportunity Commission
Congressional Liaison

Dear Congressional Liaison:

I am writing on behalf of the Spokesman Review/Cowles Publishing in Spokane, Washington. The Spokesman Review is the premier regional newspaper and has become involved with an EEOC suit for disability discrimination. The Spokesman and Cowles Publishing are concerned with this suit and feel that they have not discriminated against their employee. I am referring this inquiry to you for your consideration and response.

Please provide the necessary information in duplicate to the attention of Catherine O'Connell in my Spokane office.

In advance, thank you for your prompt attention to this matter.

Sincerely,
Slade Gorton, United States Senator


That was Senator Gorton's inquiry, and no federal agency would ignore such a missive. This is what the EEOC wrote in reply:

Seattle, Washington
February 17, 1999

The Honorable Slade Gorton
United States Senator
Spokane, Washington

Dear Senator Gorton:

This is in response to your January 28, 1999, inquiry on behalf of Cowles Publishing concerning a lawsuit we recently filed against the organization.

The lawsuit is the result of a charge of employment discrimination filed by Ms. Monica Stugelmeyer, a resident of Spokane, Washington, and an employee of Cowles Publishing's Spokesman Review newspaper, alleging discrimination based on disability. Ms. Stugelmeyer is legally blind; her vision is 20/200 and has been since birth. Her charge stems from the Spokesman Review's refusal to allow her to work in a higher-paying position with the company.

Ms. Stugelmeyer works for the Spokesman Review as a trucker/inserter. The positions of trucker and inserter are separate, but are performed by the same group of employees. Inserters load stacks of newspaper inserts, such as the advertisements, onto an inserting machine which separates the inserts and drops them into slots containing the newspapers. Truckers stack and sort completed packets of newspapers and prepare them for loading onto trucks. Inserters receive a $1.50 per hour higher wage than truckers. Truckers are assigned to rotate into the higher-paying inserter position. The company's job description states that the company will endeavor to allow truckers to have equal opportunities to perform the inserter job.

The company assigned Ms. Stugelmeyer to work on the inserter machine for the first time in May, 1996. She reported having no difficulty while working on the machine for approximately two hours. Without explanation the Spokesman Review never assigned Ms. Stugelmeyer to work as an inserter again. When Ms. Stugelmeyer approached her supervisor to express her interest in continuing to work as an inserter, she was told that her vision was too poor. This was the first time her vision had become an issue on the job. Ms. Stugelmeyer responded that she believed she was capable of performing the job, but the supervisor refused to reassign her to the inserter position again. The Spokesman Review claims that managers and co-workers were and are critical of Ms. Stugelmeyer's job performance; however, our investigation did not support such claims. No objective evidence of deficient job performance has been produced.

As you know, when Congress enacted the Americans with Disabilities Act in 1990, it sought to eliminate the prejudice and other barriers which prevent qualified individuals with disabilities from fully participating in our society as they deserve. The law contemplates that a person with a disability will be evaluated on the basis of his or her individual capabilities, and not on the basis of society's biases or an employer's preconceptions.

Because Ms. Stugelmeyer believed she was capable of performing the higher-paying, inserter job duties, she sought help from her rehabilitation counselor and arrangements were made to consult the Washington State Department of Services for the Blind. The state agency offered the services of Mr. Bronson Goo, a machine shop instructor who has twenty-five years of experience in training blind and visually impaired people to operate complex machinery.

In August, 1996, arrangements were made for Mr. Goo to travel from Seattle to Spokane to visit Ms. Stugelmeyer's workstation, at no cost to the Spokesman Review. Mr. Goo wanted to view the inserting machine operation and observe Ms. Stugelmeyer at work to determine whether she was qualified to operate the machine, with or without reasonable accommodation. The Spokesman Review refused to allow Mr. Goo to observe Ms. Stugelmeyer at work on the machine, notwithstanding the fact that Mr. Goo had the necessary expertise to determine whether Ms. Stugelmeyer could effectively operate the inserter. Mr. Goo did, however, observe other employees operating the machine. Based on his observations and experience, Mr. Goo concluded that Ms. Stugelmeyer could be trained to work safely on the inserting machine. The Spokesman Review, however, refused to consider Mr. Goo's assessment. Instead, the company made the decision to deny Ms. Stugelmeyer the right to work as an inserter and refused to consider any objective information about how to accommodate Ms. Stugelmeyer in this position.

After we issued our decision that there is reasonable cause to believe that the Spokesman Review had violated the Americans with Disabilities Act, we invited the company to engage in efforts to conciliate a resolution of the matter short of litigation. This process began in March, 1998. At no expense to the Spokesman Review, we again arranged for Mr. Goo to make a second trip from Seattle to Spokane. This time he was permitted to work with Ms. Stugelmeyer on the inserter machine. He subsequently reported that Ms. Stugelmeyer is capable of working as an inserter, and, indeed, she has continued to work in that capacity to this date.

Our reasonable settlement proposal to the Spokesman Review included a request for damages and injunctive relief, such as training for staff on relevant disability issues. Unfortunately, although requested, we have never received a specific counter-proposal from the company. We believe that, among other things, training is required to remedy the discrimination which has occurred. We are particularly troubled by the hostile attitudes displayed toward Ms. Stugelmeyer in this case. For example, counsel made the remark that Ms. Stugelmeyer "seems to be the only one" who does not believe she is disabled.

We regret the Spokesman Review's purported dissatisfaction with our handling of the charge to date. While the company may disagree with our assessment of the case and is free to present its own arguments during litigation, it is clear that our actions in processing Ms. Stugelmeyer's charge to date have been proper and consistent with the relevant evidence and our statutory mandate. It is not uncommon for the parties to a charge of employment discrimination to assert strong views that their versions of the facts support their respective positions. Still, notwithstanding their views and any pressure they seek to apply, our final determinations must comport with our own independent interpretations of the evidence and the laws we enforce. We firmly believe that the Spokesman Review has subjected Ms. Stugelmeyer to egregious, unlawful discrimination based on her disability, and we expect to prevail in the litigation we have initiated. We also know that Ms. Stugelmeyer is entitled to present her own case in court and to be represented by a pro bono attorney, to the extent she seeks further relief for which we cannot provide representation.

Thank you for your expression of interest in the case. We hope this information is helpful to you.

Sincerely,

Jeanette M. Leino, District Director
U.S. Equal Employment Opportunity Commission


That's what the EEOC wrote, and one could hardly ask for a clearer response to a Senate enquiry. The final piece of correspondence in this series is my letter to Senator Gorton. Here it is:

March 9, 1999

The Honorable Slade Gorton
United States Senator
Spokane, Washington

Dear Senator Gorton:

I have received an exchange of correspondence regarding the Monica Stugelmeyer case, consisting of a letter from Mr. Duane Swinton of the law firm Witherspoon, Kelley, Davenport and Toole addressed to your office; a transmittal letter from your office to the Equal Employment Opportunity Commission (EEOC); and a response from the EEOC to you (copies enclosed). Mr. Swinton offers the National Federation of the Blind quite a compliment. In his letter dated January 18, 1999, he says that the National Federation of the Blind has the power to determine what cases the EEOC will pursue. Although I serve as the President of the Federation, I was unaware that the organization was in a position to decide for the EEOC what it would do. Mr. Swinton apparently believes that the only way to defeat the Federation in its support of the claim brought by Monica Stugelmeyer is to seek intervention from a prominent member of the Senate.

I met Monica Stugelmeyer in the 1980's. She is not a radical, militant hell-raiser. She is a blind woman trying to get along in life. She joined the National Federation of the Blind so that she could share experiences with other blind people and learn what she could. She is part of the American workforce that helps to make this country what it is. All she asks is an equal opportunity to earn her daily bread. We in the National Federation of the Blind are trying to help her get it.

I do object to the characterization in Mr. Swinton's letter of the National Federation of the Blind. He says we have an axe to grind against employers. Apparently Mr. Swinton doesn't know of the decades of work we have done to find competent blind employees who are prepared to serve employers in every aspect of the business community. I could think of names for the carelessness demonstrated in Mr. Swinton's letter, but I will refrain from the name-calling he has used in his letter.

Senator Gorton, we in the National Federation of the Blind have great respect for you. Consequently, if you want further information about the activities of the Federation, we would be only too happy to supply it.

Sincerely,

Marc Maurer, President
NATIONAL FEDERATION OF THE BLIND